STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CELESTE MONTALVO, )

)

Petitioner, )

)

vs. ) Case No. 04-3070

)

SEVALP CORPORATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held by telephone conference call in this case on October 26, 2004, with the parties in Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida. Given the expected short duration of the hearing the parties agreed to presentation of evidence by telephone conference.

APPEARANCES

For Petitioner: Celeste Montalvo, pro se

2851 Southwest 38th Avenue Miami, Florida 33134

For Respondent: Arthur Ross

Sevalp Corporation 923 Catalonia Avenue

Coral Gables, Florida 33134 STATEMENT OF THE ISSUE

Whether the Respondent, Sevalp Corporation, committed an unlawful act of discrimination as alleged by the Petitioner.

PRELIMINARY STATEMENT

On September 1, 2004, the Florida Commission on Human Relations (FCHR) filed a Transmittal of Petition. The Petition, filed with FCHR on August 23, 2004, alleged that the Respondent, Sevalp Corporation, had committed an act of discrimination in violation of Florida law. More specifically, the Petitioner, Celeste Montalvo, maintained that the Respondent had committed a housing discriminatory practice by failing or refusing to rent to her. The basis for the discrimination was alleged to be Petitioner’s “familial status (complainant was 8 months pregnant and looking for decent housing. . .).” At all times material to the allegations of the case, the Respondent has denied that it failed or refused to rent to the Petitioner for a discriminatory reason.

Based upon the representation of the parties (that the case would take a short amount of time) and with the agreement of the parties, the hearing was conducted by telephone conference call. The Petitioner testified in her own behalf. Jose Intriago and Arthur Ross testified for the Respondent.

The Respondent’s Exhibits numbered 1-24 were admitted into evidence.

At the conclusion of the hearing the parties were not definite as to whether a transcript of the proceedings would

be filed. Having waited 30 days, it is concluded that a transcript will not be filed. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Petitioner contacted the Respondent regarding the possible rental of an apartment on or about February 5, 2004. At that time, according to the Petitioner, she was approximately 8.5 months pregnant. Whether or not the Petitioner’s pregnancy was obvious is unknown. Petitioner claims her state was self-evident. Mr. Intriago claims he did not notice that she was pregnant.

2. Mr. Intriago is the apartment manager for the buildings owned by the Respondent at 915 Palermo Avenue, Miami, Florida.

3. It is undisputed that Mr. Intriago showed the Petitioner an apartment at the cited address and that Petitioner expressed an interest in leasing the unit.

4. The Petitioner did not, however, fill out an application for the apartment, did not pay a deposit to hold the apartment, and did not have approval from the Respondent to rent the apartment.

5. The Petitioner believes that the Respondent violated Florida law by refusing to rent to a pregnant female.

6. The Respondent did not have an application from the

   Petitioner to consider. Had the Petitioner filled out an application, however, the Respondent would have rejected the Petitioner as a tenant based upon a history of misadventures with the Petitioner.

7. The Respondent accepts applications from all ethnic and familial groups. The complex Petitioner desired does have family residents. It is not a “singles only” or a “no children” complex.

8. The primary reason the Respondent would not rent to Petitioner (had she filed an application and paid the deposit) is that the Petitioner had broken a lease with the Respondent in the past. Additionally, the Petitioner on yet a second unit had failed to take occupancy when she was supposed to causing the Respondent to lose rental income.

9. In addition to the foregoing, on at least one occasion in their prior business dealings the Petitioner gave the Respondent an insufficient funds check.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569, 120.57(1), and 760.35, Fla. Stat. (2004).

11. The Petitioner bears the burden of proof in this case to establish a violation of Florida law. She has failed

    to meet that burden. The weight of creditable evidence established that the Respondent does not refuse to rent to pregnant females. Moreover, the evidence established that there were numerous, creditable, and valid business reasons why this Respondent would refuse to rent to the Petitioner.

12. Section 760.23(1), Florida Statutes (2004), provides:

    
    

    1. It is unlawful to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for the sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

13. The Petitioner did not make a bona fide offer to rent the unit in dispute. She did not complete an application, did not tender a deposit, and did not otherwise comply with the Respondent’s routine rental guidelines.

14. Had she done any of the formal things necessary to make an application for the lease, it is evident that she would have been denied a rental. Petitioner was denied not because of her pregnancy but because of her storied and checkered past dealing with this landlord. Offering an insufficient check, failing to take occupancy on a unit reserved for her, and defaulting on a lease all constitute valid business reasons for not leasing to this applicant. The decision was made based upon a direct history with this applicant not from a credit check made of other landlords.

The Respondent had first-hand, unsatisfactory experience with the Petitioner as a tenant. The Respondent was not required to rent to a known bad risk.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner’s claim.

S

DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2004.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Celeste Montalvo

2851 Southwest 38th Avenue Miami, Florida 33134

Arthur Ross

Sevalp Corporation 923 Catalonia Avenue

Coral Gables, Florida 33143

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 04-003070

Orders for Case No: 04-003070